In our last blog installment we looked at what the Florida Judicial Management Council’s PCA Report, and what it recommended (and failed to recommend) regarding the problem of deciding appeals without an opinion. Although the Report failed to adopt the majority of the suggestions placed before it, one of the things it did was to suggest a change in the appellate rules, so that an appellant could request a written opinion.
Several years after the PCA Report was issued, the recommendation adopted in the Report which showed the most promise, a rule change, finally became effective, on January 1, 2003. The newly adopted provision states:
“When a decision is entered without opinion, and a party believes that a written opinion would provide a legitimate basis for supreme court review, the motion may include a request that the court issue a written opinion. If such a request is made by an attorney, it shall include the following statement:
I express a belief, based upon a reasoned and studied professional judgment, that a written opinion will provide a legitimate basis for supreme court review because (state with specificity the reasons why the supreme court would be likely to grant review if an opinion were written). ”
Rule 9.330(a) (second portion).
The PCA Report stated a number of considerations (14, in fact) that might, according to the PCA Committee, indicate that an opinion should be written, but these guideline factors were neither written into the new rule provision, nor are they referenced in the official comment to the 2003 change. Others have suggested that those guidelines should be consulted by appellate counsel considering a motion for written opinion, however. See, e.g., Steven Brannock & Sarah Weinzierl, Confronting a PCA: Finding a Path Around a Brick Wall, 32 Stetson L. Rev. 367, 383 (2003).
Even if one or many of the factors in the PCA Report are present however, even assuming appellate counsel knows where to find them, there are no guarantees that a written opinion will be forthcoming. In fact the likelihood is that the request will be denied (again without explanation) anyhow. Part of the reason for this is that the rule is badly written, not having been given a separate subsection within Rule 9.330, and instead lumped in as the un-numbered final portion of the subsection on rehearings.
Requests for written opinions must be accompanied by a rehearing motion, but rehearing motions in turn must specify a point that the court has “overlooked or misapprehended,” and since there is no written opinion, the rule itself presents a “Catch-22” that borders on the nonsensical. When former supreme court justices now acting as appellate counsel complain about an inability, in their own cases, to get a written opinion, you can be sure there is a problem.